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Muhammad Imdad Ullah Vs. Mt. Bishmillah Alias Haliman Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil ;Property
Decided On
Reported inAIR1946All468
AppellantMuhammad Imdad Ullah
RespondentMt. Bishmillah Alias Haliman Bibi and ors.
.....that the said school may be known as madrasa ashraf-ul-ulum. 10. as regards the reasons given for abdul latif's change of mind, the civil judge appears to have thought there might be some truth in the suggestion that he was influenced by the needs of the orphans of the existing muslim orphanage, but he referred also to possible differences in regard to different schools of religious thought, and he expressed the opinion that abdul latif, a man of a religious bent of mind, but of scanty education, who had made a fortune in business, and who had no issue, might well have given a preference to orphans in considering which of the classes mentioned in quran sharif as deserving of help he should assist. ' the rule is the same as to wells and cisterns, and if they are delivered to a..........that he was acquiring the site and constructing the buildings for the madrasa ashraf-ul-ulum mohammad usman would not have associated himself in any way with the acquisition, or construction, would not have contributed a pie from other madrasa funds to its construction, would not have applied for other plots in close contiguity with the plots acquired, would not have used the buildings either for convocation or other school purposes, and would not have publicly announced the welcome gift to members of his community. for these reasons we must hold that the legal representatives of abdul latif cannot be allowed to deny the plaintiff's title (as mutawalli of the waqf connected with the madrasa ashraf-ul-ulum) in the site acquired by abdul latif and the buildings constructed.....

Bennett, J.

1. Stated as briefly as possible the question which we have to answer in this appeal is whether a Muhammadan who has acquired land for the construction thereon of school buildings, who has constructed those buildings, and who has over a period of several years caused everyone concerned to believe that he was doing this on behalf of a certain school, and to take certain action in that belief, is entitled to change his mind and dedicate the property for another object, namely an orphanage.

2. The learned Civil Judge of Cawnpore, from whose judgment and decree the appeal has been preferred, has answered this question in the affirmative. The proceedings-started on 3lBt October 1935, with an application to sue in forma pauperis, made by one Mohammad Usman Khan, purporting to act as mutawalli of the waqf connected with the school in question, namely the Madrasa Ashraf-ul-ulum. On the opposite side were Abdul. Latif, who acquired the land and constructed the buildings in question and the Muslim Yatim Khana (orphanage) through its President, Khan Bahadur Hafiz Hidayat Husain. This application, at first unsuccessful, was eventually allowed on the matter being taken in appeal to the High Court. But it was not until 1938 that the suit was registered, and in the meantime Mohammad Usman Khan, Abdul Latif and Hafiz Hidayat Husain had all died. We then find Mohammad Imdad Ullah, the present appellant, substituted for Mohammad Usman Khan (as the succeeding mutawalli); Abdul Latif's widow Mt. Bismillab, and another relative took Abdul Latif's place, and an Honorary Magistrate named K.B. Sheikh Mohammad Ibrahim took the place of Hafiz Hidayat Hussain as President of the Managing Committee of the Yatim Khana.

3. We have referred to Mohammad Usman Khan and Mohammad Imdad Ullah as mutawallis. No deed of waqf in connection with the Madrasa Ashraf-ul-ulum has been produced nor is there any evidence to show that there ever was one, but the existence of such a waqf has not been disputed before us. Abdul Latif (as also Mohammad Usman Khan) died in 1937. At the time when proceedings commenced in 1935 there was no other waqf with which the land and buildings in question might have been connected. It was not until 22nd January 1936, that Abdul Latif executed a deed of waqf in favour of the Orphanage (Ex, P-3.) In this he frankly admitted that his original object in acquiring the land and constructing the buildings was to open a school and that subsequently he changed his mind.

4. It is stated in the plaint that the Madrasa Ashraf-ul-ulum had been in existence for about 14 years in Quli Bazar, Cawnpore, having been founded by Mohammad Usman. As the accommodation there both for lodging and teaching, was inadequate Mohammad Usman made application to the Cawnpore Improvement Trust for a site for the construction of a school and hostel at a concession rate. The grant of a site was approved by the Trust in 1931, but subsequently this was changed for one more suitable, and a sale deed for the latter site was executed on 5th January 1932, (EX. C-3), for Rs. 2989-6-0. As Abdul Latif gave material help in the acquisition of the site and promised to construct the buildings the sale deed was executed in his name, as a co-mutawalli. Mohammad Usman had the plan of the building approved by the Trust, paid charges for the preparation of the plan as well as other expenses and constantly supervised the construction work. The construction was almost complete - only the door leaves remaining to be put in-when the ceremony of 'dastar-bandi' or Convocation was held on 26th May 1934. The higher classes of the school were moved there and students began to live there. As, however, the door leaves had not been put in it was found too cold in the winter and so, on Abdul Latif's promise to complete the building, it was temporarily vacated by the school. Abdul Latif took possession in February 1938, and at the end of April 1935, made over the building to the Orphanage. When Mohammad Usman objected he claimed that the building belonged exclusively to himself. Notice to vacate was sent to him, but he denied the title of the Madrasa-ul-ulum, this being on 2nd October 1935.

5. The reliefs prayed included (1) a declaration that the building construer and land appertaining thereto is the property of the Madrasa-ul-ulum and that the defendants are not the owners; (2) possession over this building and land; (8) Rs. 8200 damages from 15th April 1935 to 15th September 1988, the period during which the Orphanage had been in possession prior to the suit; and (4) further damages on account of the possession of the property by the Orphanage during the pendency of the suit.

6. The principal contesting defendant was the Orphanage. The existence of the school in Quli Bazar was admitted. It was also admitted that Mohammad Usman had applied to the Cawnpore Improvement Trust for land for the purpose of a school; that Abdul Latif had purchased land from the Trust for an Arabic Madrasa and boarding house and afterwards constructed a building thereon; and that subsequently he executed a waqfnama and dedicated the property to th6 Yatim Khana. It was further admitted that Abdul Latif had been associated with Mohammad Usman in the applications to the Trust for land, these applications being made 'in the hope of helping M. Mohammad Usman Khan in his efforts to get land'; and that Mohammad Usman 'also helped Abdul Latif with his advice.' After these admissions it was stated that all the construction expenses, amounting to about Rs. 20,000, were met by Abdul Latif from his own pocket. Then follows para. (16) on which the defence case is mainly founded. It runs as follows:

16. It was never the intention of Abdul Latif's that the building which he shall cause to be constructed shall be given to the school which was going on with subscription in the mosque of Shaikh Lallan, or that the Managers of the said Madrasa which was going on by subscription should have a say, and be given an office in connection with the management of the buildings which have been constructed, or, that the buildings which have been constructed should remain in the exclusive use of the students; on the other hand his intention was only this that like other schools of Arabic (Ashraf-ul-ulum), a school for imparting religious education in Arabic should be opened in the buildings constructed by him on such a large scale that every Muslim student may be able to derive benefit, and that the said school may be known as Madrasa Ashraf-ul-ulum. His intention was that when the school is opened he would himself make a waqf of the building in favour of the Madrasa.

7. In explanation of Abdul Latif's change of mind, it is said that when the construction was nearing completion and fever and meningitis were raging in Cawnpore, Abdul Latif realised 'that he should remove the Muslim orphan children from the place where there was great danger of the disease and place them in his building and in doing so his desire to give religious education to the children in Arabic was fulfilled.' It is claimed that this was more beneficial to the public. He made over possession of the building to the Managers of the Islamia Yatim Khana and executed the waqf. It is denied that Abdul Latif had any special interest in the Madrasa of Mohammad Usman or was ever its mutawalli. He was not even its Assistant mutawalli and the sale deed was not executed in his favour as such. He was to be nominated mutawalli of the Madrasa which he had originally intended to found. This no doubt was said in explanation of the reference to him in the sale deed (Ex. C-3) as mutawalli of the Ashraf-ul-ulum Arabic school. Even assuming, the written statement continued, that Abdul Latif intended to make a waqf of the building in favour of Mohammad Usman's Madrasa no deed of transfer was executed and no right of ownership accrued to the plaintiff. It was denied that Abdul Latif had made any promise to Mohammad Usman and it was also denied that the higher classes of the latter's Madrasa were transferred to the building; and that any deceitful means were employed to have the building vacated. The most important issues were the second, third and fourth which read:

(2) Did the late Abdul Latif construct a Madrasa at Chamanganj for Ashraf-ul-ulum referred to in issue 1? (that is, the Madrasa in Quli Bazar of which it is not now in dispute that Mohammad Usman was the Mutawalli. (3) Did there exist any promise between Mohammad Usman and Abdul Latif that the latter will construct the building and hostel for MadrasaAshraf-ul-ulum Quli Bazar or not? (4) Did Mohammad Usman ever get possession of the buildings in dispute as a Mutawalli of Ashraf-ul-ulum? If not how does it affect the suit?

8. The Civil Judge found on the evidence that Mohammad Usman was anxious to acquire land on which to erect a building for his school. He made the original application to the Improvement Trust in 1930 and this was followed up by Abdul Latif's application the following year. Land was eventually granted to Abdul Latif and it was proved that he paid the price, Rs. 2989-6-0. This was at the concession rate of one-third. The Civil Judge thought that the reference to Abdul Latif in the sale deed as Mutawalli of the Ashraf-ul-ulum Arabic school was merely descriptive 'and cannot by any stretch of imagination be said to convey an idea that 'the sale deed itself was in favour of Madrasa Ashraf-ul-ulum.'

9. As regards the cost of the building, the Civil Judge stressed the admission of the plaintiff that at least 99 per cent, had been borne by Abdul Latif from his own pocket. A very small amount might have been invested from the funds of the Ashraf-ul-ulum, this including a sum of Rs. 32 for preparation -of the plan, as shown in the school accounts, but on the whole not more than about Rs. 200 was spent by Mohammad Usman 'in securing trifling things for this costly building while the building itself was in progress.' And the Civil Judge thought that even this small amount might have been spent by Mohammad Usman without the knowledge of Abdul Latif, there being no satisfactory evidence to prove such knowledge. On the point of title the Civil Judge thought that if Abdul Latif had at one time decided to give the building to this Madrasa he would have had it entered as owner in the municipal records, with Abdul Latif as its mutawalli. Those records, namely, tax registers from 1932 to 193 8, on the contrary show the name of Abdul Latif alias Mathu as the owner. The Civil Judge observed that.

It may be that Mohammad Usman was trying to get this building along with its site land from Abdul Latif for Madrasa Ashraf-ul-ulum, but it cannot be said for a moment that the same was actually given by Abdul Latif or dedicated to that institution. Abdul Latif might have also (taken) the wish of Mohammad Usman into consideration, but that too cannot be said to have made the Madrasa Ashraf-ul-ulum to be owner of such building prior to actual enforcement of it.

10. As regards the reasons given for Abdul Latif's change of mind, the Civil Judge appears to have thought there might be some truth in the suggestion that he was influenced by the needs of the orphans of the existing Muslim orphanage, but he referred also to possible differences in regard to different schools of religious thought, and he expressed the opinion that Abdul Latif, a man of a religious bent of mind, but of scanty education, who had made a fortune in business, and who had no issue, might well have given a preference to orphans in considering which of the classes mentioned in Quran Sharif as deserving of help he should assist. As regards the use of the building for 'jalsa dastarbandi' or Convocation on 26th May 1934, the evidence of the plaintiff's own witnesses showed that this was by express permission of Abdul Latif which, the Civil Judge thought, it would not have been necessary to obtain had the1 building been in effect already dedicated to the Madrasa. Though there was evidence which showed that the students had remained in the building thereafter the witnesses did not agree as to the actual period and even if they had remained in it for a short period it was vacated on the request of Abdul Latif. There was no evidence of any express promise by Abdul Latif to Mohammad Usman and even if there had been by itself it would have no legal force. The property remained the property of Abdul Latif until he disposed of it by the waqfnama of 27th (22nd?) January 1936. The Civil Judge accordingly dismissed the suit.

11. For the appellant it was contended that there was in effect a dedication by Abdul Latif of the property to the Madrasa, evidenced by his conduct over a number of years, during which there was no suggestion by him that he intended to dispose of it to any other institution, while on the contrary he allowed everyone to think that he had acquired the site and constructed the building for this Madrasa. The respondents' learned Counsel argued that although Abdul Latif had intended originally to execute a waqf of the property in favour of an Arabic school, he never actually decided to dedicate the property to this particular school or finally committed himself to such a disposition of the property. But even if he did announce this to be his intention, that by itself would be insufficient to divest himself of the property. On the question of intention we may say that the evidence, to which we shall refer shortly, leaves in our judgment no doubt that it was Abdul Latif's original intention to dedicate the property to the Madrasa of which Mohammad Usman was mutawalli. On the question whether by itself a mere declaration of intention would constitute dedication, we must on the authorities agree with the respondents' learned counsel. The law on this point is thus stated in Ameer Ali's Mohammedan Law (p. 405, edition 4):

According to Abu Yusuf, a dedication to any object of utility is efieotuated by the kawl or word of the wakif, as in the case of a mosque. For example, when a person erects an aqueduct for Mussulmans, or an inn for the occupation of travellers, or a caravanserai or constitutes his land into a cemetery, the dedication becomes complete upon the declaration of the wakif, and all his right of property ceases therein. According to Mohammed, it abates when people have used the aqueduct or have occupied the inn or caravanserai, or (have been) buried in the cemetery, and it is sufficient if one person do so.' The rule is the same as to wells and cisterns, and if they are delivered to a superintendent, the dedication is valid in like manner. It is stated in the Mabsut that the Fatwa is according to the Disciples by general consensus, in other words, the dedication may be effectuated in either way, viz., by the actual declaration of the wakif or by delivery, in other words, by the use of the place by a, single person.

12. In Wilson's Anglo-Muhammadan Law we find (para. 320, Edn. 6):

A dedication inter vivos is complete and irrevocable as against the endower, either when a civil Court has so decreed, or when possession has been delivered by the endower to the Mutawalli, accompanied by a declaration of the trusts of the endowment.

13. We have been referred to several cases bearing on this question. The Calcutta High Court in Debendra Nath v. Naharmal Jalan : AIR1930Cal673 accepted the view of Abu Yusuf, 'whose tenets hold the field as far as Bengal is concerned,' that the waqf becomes absolute and binding on the mere declaration of the waqf. This Court has, however, consistently taken the view that it is essential to the validity of a waqf that the waqf should actually divest himself of the property to. be made waqf. The matter was first considered in Muhammad Aziz-ud-din Ahmad Khan v. Legal Remembrancer to Government ('93) 15 All. 321 in which case the authority of Muhammad was preferred to that of Abu Yusuf. The same view was taken in Muhammad Yunus v. Muhammad Ishaq Khan ('21) 8 A.I.R. 1921 All. 103 and Muhammad Shafi v. Muhammad Abdul Aziz : AIR1927All255 . The Lahore High Court held in Zafar Hussain v. Mohammad Ghias-ud-din ('37) 24 A.I.R. 1935 Lah. 250 that there must be unmistakable proof that the owner made a clear declaration dedicating the property definitely and permanently to God : and that the owner's unexpressed intention, to dedicate the property cannot have the effect of a formal dedication. In an earlier Lahore case, Abdul Rahman Khan v. Daulat Khan ('35) 22 A.I.R. 1935 Lah. 250 stress was laid on the necessity for actual appropriation or complete divesting of the estate of the waqif.

14. The whole question was exhaustively examined by a Bench of the Oudh Chief Court in Mst. Rahman v. Mst. Baqridan ('36) 23 A.I.R. 1936 Oudh 213 in which dissenting from the Allahabad view and finding that the authority of Abu Yusuf prevails generally in India, it was held that under the Hanafi law a mere declaration by the wakif is sufficient to complete a waqf and it is not necessary that possession should be delivered to the mutawalli. As regards the manner and proof of dedication, it was said in Fakhr-uddin v. Kifayat-Ullah ('10) 8 I.C. 578 at p. 1120 that an oral dedication may be inferred from repute and facts which lead necessarily to the inference that there was such a dedication; and it was also observed by their Lordships of the Privy Council in Muhammad Hamid v. Mian Muhamud ('22) 9 A.I.R. 1922 P.C. 384 at page 1013 that dedication may be inferred from facts although the word waqf is not shown to have been used.

15. We have come to the conclusion that although we cannot hold that there was express dedication, the circumstances furnish justification for our holding that the respondents should be held estopped from claiming the property. Before arriving at this conclusion we examined the evidence with some care to see whether Abdul Latif, by his declaration, act or omission, intentionally caused or permitted Mohammad Usman to believe that he was dedicating the property to the latter's Madrasa and to act upon such belief. Mohammad Usman's association with Abdul Latif in the acquisition of the land is, as we have seen, admitted, and the sale deed executed by the Improvement Trust in favour of. Abdul Latif on 5th January 1932, leaves no doubt at all as to his intention on that date. We find it difficult to agree with the Civil Judge that the words after his name, 'Mutawalli of the Ashraf-ul-ulum Arabic school' are merely descriptive when he had had no previous association with the school, but apart from this it is definitely stated in the sale deed that the land was being purchased for. 'Madrasa Ashraf-ul-ulum and attached buildings.' The Trust sold the land at the concession rate on the express condition that it would be utilised for this purpose, and the purchaser was required to pay the full ordinary purchase price (i.e., a further Rs. 5978-12-0) in order to obtain the sanction of the Trust to convert the land and buildings to be erected thereon to any other use.

16. We agree with the Civil Judge that only a very small cost of the expenditure involved was, found by Mohammad Usman, but however small the amount may be, if in making this expenditure out of other Madrasa funds he was acting in good faith in the belief that Abdul Latif was acquiring the site and constructing the buildings for the school, which we think there is no reason to doubt, the conditions of Section 115, Evidence Act, would appear to be satisfied. Moreover the evidence shows that Mohammad Usman was making appeals and collecting subscriptions for the new buildings and in fact received some financial aid from the Municipal Board, to be utilised on the buildings. The site acquired by Abdul Latif was insufficient. There is a copy of an application on the record (Ex. 20) addressed by Mohammad Usman to the Improvement Trust which makes this quite clear. On behalf of the Managing Committee of the Madrasa Ashraf-ul-ulum he thanked the Trust for granting plots Nos. 66 to 72 in Block E (the land conveyed to Abdul Latif by the sale deed) but said that this area was inadequate and asked for adjoining plots Nos. 95 to 103 in addition.

17. The application is not dated but it was probably sent about the time that the sale deed of 5th January 1932 was executed, for we find on the record a resolution of the Trust (No. 16, dated 15th January 1932) referring to it. The resolution mentioned Mohammad Usman's application for these additional plots and allowed the application as a very special case to the extent of three plots 'opposite his existing plots' on condition that he specified them within 15 days and also submitted plans showing how he proposed 'to utilize all the plots; i.e., those handed over previously and those now proposed.' There are on the record a number of receipts granted to various persons, including Abdul Latif himself, for amounts received on account of the construction of the buildings. They are signed by the present appellant, M. Mohammad Imdad Ullah, who gave evidence in the case. It appears that he was assisting Mohammad Usman in the school and in his plans for its construction and expansion. His evidence shows that a sum of Rs. 2500 which was given by the municipality was spent on the building; in particular the gate and certain rails were built from 'money of the Madrasa.' And school accounts show not only that money paid by Abdul Latif was included in these accounts, but also that a very detailed account was kept of the money spent on construction. It is true that Imdad Ullah admitted that the ac counts were kept by Abdul Latif himself, but this only goes to show that Abdul Latif had fully identified himself with the school. Having allowed himself to be described in the sale deed as a mutawalli of the school and being no doubt at that time. greatly interested in it, it is not unnatural that he should. The accounts are headed 'Statement of account Madrasa Chamanganj relating to expenses of construction - 23rd March 1931 to 26th February 1934.' The total comes to Rs. 17,673.

18. It further appears from the evidence of Mohammad Imdad Ullah that the Municipal Board asked for an account of their grant of Rs. 2500 and received a reply that it would be sent when the building was complete. But 'the accounts were kept by Abdul Latif and there sprang up bad feeling, hence accounts could not be sent.' The reason given by Mohammad Imdad Ullah for the vacation of the building a few weeks after the 'dastarbandi' meeting was that the building was not completed and it was not therefore fit for occupation in winter time. We see no reason to doubt this. Finally we may refer to the notice issued by Mohammad Usman inviting his co-religionists to the 'jalsa dastarbandi' on 26th May 1934. It is stated therein (Ex. 65) that:

a meeting for the 'dastarbandi' of the students who have completed their studies in this school is to beheld on Saturday the 26th May 1934 in the grand building constructed in Chamanganj by Mohammad Abdul Latif, Proprietor, East End Leather Works, for Madrasa Ashraf-ul-ulum.

19. All this goes a long way towards showing, not only that Abdul Latif had left no possible doubt as to his intentions, but also that others, acted in the belief that the gift was as good as if it had already been embodied in a formal instrument. We think that our view that the conduct of Jibdur Latif from 1931 to1934 creates an estoppel against him and anyone claiming it his right is supported by what was said by their Lordships of the Judicial Committee in Sarat Chunder Dey v. Gopal Chunder Laha ('93) 20 Cal. 296 and by a learned Judge of this Court in In re Union Indian Sugar Mills co., Ltd. ('3) 17 A.I.R. 193 All. 330. In the former case their Lordships, holding that the terms of the Indian Evidence Act do not enact anything different from the law of England on the subject of estoppel, observed:

What the law and the Indian Statute mainly regard is the position of the person who was induced to act; and the principle on which the law and the statute rest is, that it would be most inequitable and unjust to him that if another by a representation made or by conduct amounting to a representation, has induced him to act as he would not otherwise have done, the person who made the representation should be allowed to deny or repudiate the effect of his former statement, to the loss and injury of the person who acted on it.

20. And in the case of this Court Mu-kherji J. observed:

Authorities have laid down from time to time that people who have induced others to act on the assertion that they were going to act in a particular manner, have not; been allowed to act otherwise than in the way promised, if the other party have acted in the manner suggested and have there by changed their position.

21. Considering these dicta with the facts of the present case we may say that if Abdul Latif had not represented that he was acquiring the site and constructing the buildings for the Madrasa Ashraf-ul-ulum Mohammad Usman would not have associated himself in any way with the acquisition, or construction, would not have contributed a pie from other Madrasa funds to its construction, would not have applied for other plots in close contiguity with the plots acquired, would not have used the buildings either for convocation or other school purposes, and would not have publicly announced the welcome gift to members of his community. For these reasons we must hold that the legal representatives of Abdul Latif cannot be allowed to deny the plaintiff's title (as mutawalli of the waqf connected with the Madrasa Ashraf-ul-ulum) in the site acquired by Abdul Latif and the buildings constructed thereon.

22. There remains the question of damages. The Civil Judge assessed the rental value at Rs. 125 a month, making a total of Rs. 4500 for the period of three years during which the orphanage was in possession prior to the institution of the suit. This figure has not been disputed. In the circumstances of the case we do not think that any further sum should be allowed for the period that has since elapsed, the circumstances which have particularly influenced us being that Rs. 4500 is a substantial amount, that the money will have to be found by the orphanage, another charitable institution, and that there is no reason to doubt the good faith of those who have been acting on its behalf. In the result the appeal is allowed; the appellant is granted a declaration of title in and possession of the site and buildings thereon, together with damages amounting to Rs. 4500 against defendant 3, that is, the Yatim Khana Islamia, Cawnpore. The appellant is also granted proportionate costs against this defendant in both Courts.

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